Passamaquoddy Recognition: Background information

In the year 2013, there are approximately 300 known Passamaquoddy people residing in New Brunswick (NB), Canada, primarily in their traditional territory in the southwest part of the province. They make up the Schoodic Band of Passamaquoddy, led by Chief Hugh Akagi elected in 1998 and the great grandson of a Passamaquoddy hereditary chief, John Nicholas. Traditionally, the Passamaquoddy lived seasonally on both sides of what is now the international border (Canada/USA) and traveled freely from place to place. Today, Passamaquoddies are recognized as Indigenous Peoples by the United States government, whereas the Canadian government has denied their Indigenous Rights under Canadian law. How has this injustice come about? How can it be rectified? To answer these questions, this document presents a brief summary of the Passamaquoddy journey over many millennia in their home territory centered on the Schoodic (St. Croix) River drainage and the Fundy Islands. Much of the information presented here was taken from the document, “Passamaquoddy Journey” produced in 2007 by Paul Williams for the Schoodic Band of Passamaquoddy. That document was presented to the Government of Canada as justification for the recognition of the Passamaquoddy Peoples in Canada. To date recognition has not been granted and the Passamaquoddy continue to press their case.

Creation Stories/Songs

Stories and songs of Gluskap told by the Passamaquoddy that are connected with features of the landscape demonstrate that the ancestors of Passamaquoddy Peoples inhabited the land and sea islands around Passamaquoddy Bay since time immemorial. For example, at Chamcook (in present-day New Brunswick) Gluskap is said to have thrown a whale onto the shore. He told the people to look to it if they were hungry. Today, from some angles, one can see the head and tail of the whale in Chamcook Mountain, a place known for wild edibles. In 1882, Walter Fewkes recorded on wax cylinders some of the stories and songs told by Passamaquoddy elders on Campobello Island (NB). Passed on from generation to generation, these stories preserve Passamaquoddy identity and original instructions for living together on the land. The Supreme Court of Canada in the late 1980’s (Delgam’uukw v. British Columbia) confirmed “that the way the people expressed their connection with the land, within their own culture, required respect from Canadian courts.”

Archaeological Evidence for Over 12,000 years of Occupation

Evidence is now piling up that confirms the ancestors of the Passamaquoddy inhabited their traditional territory from Machias, Maine (USA) to Point Lepreau (Canada) since the retreat of the glaciers 13,000 years ago. Centered on Passamaquoddy Bay in what is now known as Charlotte County, New Brunswick, their traditional homeland reveals over 70 pre-contact (with Europeans) archaeological sites on the Canadian side alone that have artifacts representing all time periods to the present. Many more sites are believed to be under water now because of rising sea levels1. Of current intense interest are the 4 archaeological sites (one now covered over by road) at Pennfield Ridge, NB2. Discovered in 2009, two of these sites reveal Paleoindian occupations from 12,900 Before Present to 12,500 BP (calibrated dates), while others yield evidence of habitation in later time periods3. Research continues at these locations and more information about these ancestors through the ages is sure to be discovered. Dr. David Black (University of New Brunswick) stated: “ …I have no difficulty with interpreting the archaeological portion of Passamaquoddy traditional territory as representing the in situ development of a single cultural group from ca. 4,000 BP to European contact. I also do not see any insurmountable problems in interpreting the archaeological record as representing in situ development from ca 8,000 BP to European contact.”4 This was written in 2007, prior to the discovery in 2009 of the Paleoindian sites at Pennfield Ridge that extend evidence back to over 12,500 years ago (Brian Suttie, Personal Communication).

The Passamaquoddy Cycle of Life

Seasonal journeys within their traditional territory, which extended inland north along the Schoodic River to the Chipputnecook Lakes, involved taking advantage of different bounties of nature at different times of the year. Absence on a particular site did not mean abandonment, only temporary travels elsewhere to gather/hunt/fish. For instance, in the springtime for about 6 weeks, a field at Salmon Falls on the Schoodic River (now called the St. Croix) was occupied by many Passamaquoddies to take advantage of the runs up-river by salmon, eels and alewives. Much of the take was processed /dried for the following winter. The village of Milltown, NB now covers this site. Also, since time immemorial, the point of land jutting into Passamaquoddy Bay, now occupied by the town of St. Andrews, NB, was the major meeting place of the Passamaquoddy. Called Qonasqamkuk, sacred ceremonies, burial of chiefs and other activities happened yearly at this site. Passamaquoddy Bay was long known for its abundance of pollock. The name for the Passamaquoddy (Peskotomuhkati) means “spearers of Pollock”.

Contact with Europeans

Although the History of New Brunswick on the NB government’s web site only mentions Maliseets and Mi’kmaq as having met European explorers, unaltered history records that the first extensive encounter of explorers was with the Indians of Passamaquoddy Bay in 1604-1605. French explorer Samuel de Champlain visited Qonasqamkuk 5, the major Passamaquoddy settlement (now St. Andrews, NB) and some of his men built a fort and spent a year on a nearby island in Passamaquoddy Bay, helped to survive by the local inhabitants. Although the French seamen left the island after a year of hardship, others from France settled in the area. During the tragic years of 1616-19, the “Great Dying” occurred all over Wabanaki land, including in Passamaquoddy territory. 75% of the indigenous population perished. Still, the Acadian Census of 1688 (recorded by M. de Gargas) states that in St. Andrews (Qonasqamkuk) there were “21 whites, men, women and children, 40 Indians, 10 wigwams…” This, of course, was just one habitation in the vast Passamaquoddy area. The French and English fought over Passamaquoddy land until the British claimed victory in 1753.

Treaties with the British

The Passamaquoddy were signatories to several peace and friendship treaties with the British. Interestingly, these treaties form the basis of several seminal Supreme Court of Canada decisions regarding Native Rights of the Mi’kmaq and Maliseet, First Nations recognized by Canada whose territories are adjacent to the Passamaquoddy’s in present day New Brunswick. These Nations along with others from what is now known as New England in the USA make up the Wabanaki Confederacy, an important and old alliance. The Peace and Friendship Treaties of the Passamaquoddy and other Wabanaki Nations with the British crown (1725, 1749, and 1760) are different than other treaties with Indigenous Peoples in Canada. The key difference is that they never ceded their land. Unlike the treaties Canada made with First Nations in the west where land was ceded in exchange for specifically defined reserves, these Wabanaki treaties simply confirmed native peoples rights to live in their traditional homeland. This is most clearly stated in Mascarene’s Promises (companion document to Mascarene’s Treaty of 1725) “…That the Indians shall not be molested in their Persons, Hunting, Fishing and Planting Grounds nor any other lawful occupations by his Majesty’s Subjects or their Dependents…”. 6 No land was officially relinquished to the Europeans in these treaties.

Even though Section 35 of the Canadian Constitution (1982) requires the acceptance and honoring of “existing aboriginal and treaty rights,” the Passamaquoddy are denied their treaty rights today including the rights to hunt and fish in their traditional territory on the Canadian side of the border. In the last 25 years, several important Supreme Court of Canada decisions in favour of Wabanaki First Nations have been based on the unique Peace and Friendship Treaties. These decisions confirm their rights to fish, fowl, hunt, harvest wood and plant unmolested contrary to provincial laws (R. v. Paul and Polchies – 1986; R.v. Paul and Paul – 1987; R. v. Denny et al – 1990; R.v. Donald Marshall Jr. – 1999; R.v.Sappier and Gray -2006). The Donald Marshall case is particularly important because it establishes that the 1760 Treaty was originally negotiated between the Crown and the Passamaquoddy and Maliseet Nations. Even though Passamaquoddy Chief Michel Neptune was a signatory to the 1760 treaty, after the Supreme Court decision, the Maliseet and Mi’kmaq were granted aboriginal commercial fishing rights in Passamaquoddy territory. Because the Passamaquoddy are not recognized by Canada or the Province of New Brunswick as a First Nation, they have been by-passed from receiving their rights declared in these court cases based on the Peace and Friendship Treaties of which their Chiefs were signatories. This is in violation of the United Nations Declaration on the Rights of Indigenous Peoples.

Furthermore, Canada does not abide by the Jay Treaty of 1794 which guaranteed the Passamaquoddy free passage back and forth across the border with their goods. This border with the USA along the St. Croix was established in 1783 and cut the traditional Passamaquoddy territory and the Passamaquoddy Peoples in half.

In R. v. Sioui, the Supreme Court of Canada in May 1990 stated that “a treaty cannot be extinguished without the consent of the Indians concerned.” As you will see in the following pages, the Passamaquoddy have never agreed to extinguish their treaty rights, nor have they ever ceded any of their land on the Canadian side of the border.

Passamaquoddy Reserve Lands

The increasing European population in Passamaquoddy territory in the late 1700’s and the resulting deforestation made the People’s traditional hunting and gathering lifestyle more and more difficult. Things became much worse for the Passamaquoddy following the defeat of Britain during the American Revolution, when a flood of Loyalists flowed into New Brunswick in the early 1780’s. They pushed many Passamaquoddy people from their major encampment areas. This is the beginning of the forced displacement of the Passamaquoddies by the 74th Highland Regiment (Scottish) of Loyalists, located by the British on the border to guard against any American encroachment.

During this period, Passamaquoddy leaders made numerous requests to British officials for reserve land for their exclusive use. For example, after the French and Indian War (7 Years War) between the British and the French, the victorious British held several conferences with the Passamaquoddy. In 1770 Lord William Campbell (Gov. of Nova Scotia) met with Passamaquoddy Chiefs on Campobello Island (now part of New Brunswick). The chiefs asked for a Grant of 500 acres of land up the Schoodic River (St. Croix) near Stillwater. Campbell answered that although he could not give an absolute grant, he acknowledged that “they might sit down upon it, and he would secure them in the quiet and peaceable possession of it.”

Although most of their requests were not granted, there were at least 3 distinct reserves created for the Passamaquoddy in what is now Canada7,8: the Schoodic reserve, the Canoose reserve, and the St. Croix reserve. All of these reserves have been taken away or lost. In addition, at least two other tracts of land were well known as Passamaquoddy gathering places and the subject of numerous petitions for reserve status: Qonasqamkuk (St. Andrews) and Grand Manan island, though both have never been formal reserve lands.

The Schoodic reserve in present day Milltown, NB was the first to be granted in 1785. It consisted of 2 parcels of land (200 acres + 120 acres) adjacent to the Schoodic falls, an important fishing place and tribal burial ground.9,10,11 This area received a huge influx of Loyalists who dammed the river destroying this vital fishing spot and making it less useful to the Passamaquoddy as a seasonal fishing area. With Native usage of this area dwindling, one parcel of this land was re-granted to the adjacent church, which then allegedly purchased the other parcel from the Passamaquoddy.11

The Canoose Reserve was 160 acres (in two lots) at the confluence of the Canoose and Schoodic (St. Croix) Rivers, created by a New Brunswick Order in Council in 1851. The St. Croix reserve was created by a New Brunswick Order in Council in 1881 for 200 acres on the St. Croix River near the outlet to the Chiputneticook Lakes. Both of these reserves were given lot numbers (# 99 & 100) and are recorded in official records of the Canadian Department of Indian Affairs.12 These reserves also became less useful to the Passamaquoddy over time as the government allowed logging on the land and the fish and game were over-harvested by the European settlers. Because the Natives were not present on the land year round but used it for seasonal hunting and gathering, as they used all their traditional territory, Europeans repeatedly made the case that Natives were not using this land and therefore, the government should sell it. The government did not allow the land to be sold, though it did continue to allow the settlers to cut timber from the lands. For many decades the government tried to convince the Passamaquoddy to surrender these reserve lands, but their leaders refused. In 1919, the Canadian government approached the Maliseets, Native Peoples from the Wolastoq (Saint John) River drainage to surrender the land in the place of the Passamaquoddy, but they also refused. The Canoose reserve was finally sold in 1936 when the Governor General exempted this case from the surrender clause in the Act.13 Since there was no provision nor precedent for such an exemption, this is viewed by many as an illegal sale. In 1944, an Order in Council transferred the St. Croix reserve to the Province of NB.14 The Passamaquoddy made several complaints through lawyers regarding the rescinding of both reserves, and submitted many petitions to return these reserves to the Passamaquoddy Peoples.15

The tip of the peninsula at Qonasqamkuk (St. Andrews), still called Indian Point today, is the most sacred gathering place of the Passamaquoddy and their ancestral burial ground. Several petitions were made to secure this land for Natives use. Although neither the British nor the Government of New Brunswick ever made a formal reserve at Indian Point, neither did they patent the land. Much of it remains commons to this day. One Passamaquoddy family continued to live on their ancestral land at Indian Point and their descendants still live there today. The Passamaquoddy leader, John Nicholas maintained a wigwam and lived at Indian Point until his death in 1926. He married a Native woman from the St. George area. Together they had 12 children. Chief Hugh Akagi is his great grandson. Chief Akagi and some of his siblings live at Indian Point to this day. In the 1980’s, the Town of St. Andrews began creating deeds for the land at Indian Point. A dispute ensued between the Town and the Akagi family over both the size of the family homestead, and whether this land should ever be ‘fee simple’ (i.e. owned and allowed to be bought and sold). In First Nation culture, land cannot be ‘owned’ by any person. This matter has not been settled and the Akagis continue to live at Indian Point.

It is clear from the historic record that the Passamaquoddy have never ceded title to their land at Qonasqamkuk (Indian Point) or any other area of their traditional territory in Canada. Indeed, in 1854 a petition to the New Brunswick House of Assembly signed by many Passamaquoddy elders detailed the wrong-doings of the Loyalists at St. Andrews: promising to, but not paying 25 pounds to stay for one winter only, tearing down the Cross on their sacred burial grounds, forcing them off their land, etc.)16 This petition, unfortunately tabled, asked for an investigation of illegal activities and compensation. More injustices followed by the province and the Town of St. Andrews which attempted, but failed, to quiet title.

Another Passamaquoddy reserve was likely created on the island of Grand Manan in response to a petition by the Passamaquoddies in 1826.17,18 This area was an important fishing and hunting place. Unfortunately, historical records are unclear on the formality of this reserve.

 Recognition

The Government of Canada does not recognize the Passamaquoddy Peoples as Indians, entitled to be registered under the Indian Act. Canada does not recognize nor accept that it has obligations that flow from the Crown’s treaties with the Passamaquoddy, and is thereby dishonoring the Crown. This is evidenced by the federal government’s actions when after the Marshall Decision, fishing locations in traditional Passamaquoddy territory were allotted to Maliseet communities. The Passamaquoddy were neither consulted nor were they offered any part of the fishery even though this Supreme Court decision was made on the basis of treaties signed by the Passamaquoddy. Neither Canada nor the Province of New Brunswick recognize Passamaquoddy Aboriginal Rights nor Aboriginal Title to land.

Several excuses have been given to rationalize the lack of Passamaquoddy recognition in Canada. Most notable is the claim that the Passamaquoddy Peoples live in the United States. There are Passamaquoddy residing on the US side of the border, but there are also Passamaquoddy living on the Canadian side of the border today. The traditional Passamaquoddy territory is bisected by the international border. Passamaquoddy Peoples have always lived on both sides of this line. Another common dismissal of recognition requests is that the Passamaquoddy have treaties with the United States. Yes they do, but so do the Maliseet and the Mi’kmaq and they are recognized as First Nations in Canada. There is no law stating that a Nation cannot have treaties with more than one other Nation. It is also said that the Passamaquoddy supported the United States in the American Revolution. Some did and others aligned themselves with the Loyalists. The Mi’kmaq and the Maliseet similarly split their alliances.

The Passamaquoddy situation is not unique. The closest example to the Passamaquoddy situation is the Akwesasne Mohawks who live on both sides of the St. Laurence River, which is also the Canada/USA border. The Akwesasne have a similar history to the Passamaquoddy and today they maintain treaty relations with both Canada and the USA and have land claims on both sides of the border. The Government of Canada recognizes the Mohawks of Akwesasne as ‘Indians’ under the Indian Act without regard to their Canadian or US citizenship. Other relevant examples include the Oneida, Potowatomi, Cayuga and Lakota.

The Schoodic Band of Passamaquoddy are actively fighting for recognition as a First Nation in Canada. Decades of engagement with the Government of Canada has escalated in the past five years. The Schoodic Band has conducted research requested by the Canadian Government on the genealogy of all its band members, and the history of the Passamaquoddy Peoples in their homeland. Still there has been no recognition. The Passamaquoddy are now threatening to take the Government of Canada to court.

The Aboriginal Perspective

Treaties establish relationships. To Native Peoples the most crucial element of a relationship is respect. Traditionally Passamaquoddy treaties were recorded in wampum, belts made of small pieces of shell. The wampum belt said to represent treaties with the crown consists of two dark bands, one to symbolize the native canoe and the other the European sailing ship. These two dark bands are separated by three white bands symbolizing respect, trust and friendship. The three white bands keep the canoe and the ship close together but at a respectable distance from each other.

In a letter to the NGO Committee of the United Nations, Chief Hugh Akagi of the Schoodic Band of Passamaquoddy states, “As Native people we will continue to practice our traditions and culture and we will defend to the end our right to exist and we will resist any attempt to separate us from our homeland, our ancestors and our heritage.”19

  REFERENCES

1. Sanger, David 2008 “Discerning Regional Variation: The Terminal Archaic Period in the Quoddy Region of the Maritime Peninsula,”Canadian Journal of Archaeology 32:1-42.

2. Morris, Chris 2013 “Ancient artifacts found,” Telegraph Journal March 2, 2013

3. Cummings, L.S. et al 2012 “Phytolith, Protein Residue, and Macrofloral Analysis and Archaeoclimatic Modeling for Sites from New Brunswick, Canada,” The Digital Archaeological Record (tDAR ID: 380342)

4. Black, David W. 2007 “A Summary of the Pre-Contact Archaeological History of the Canadian Portion of Passamaquoddy Traditional Territory,” Passamaquoddy Journey, pgs. 12-20.

5. Williams, Paul (ed) 2007 Passamaquoddy Journey. Unpublished report to the Department of Indian Affairs, Government of Canada

6. Nicholas, Andrea Bear 1994 “Mascarene’s Treaty of 1725,” University of New Brunswick Law Journal, vol. 43, pgs. 2-30. (Includes “Mascarene’s Promises signed document)

7. Rayer, Barb 2009 “Research backs Passamaquoddy claim for First Nation status,” The Saint Croix Courier, September 30, 2011

8. Pawling, Micah 2007 Wabanaki Homeland and the New State of Maine: the 1820 Journal and Plans of Survey of Joseph Treat, University of Massachusetts Press.

9. St. Croix Courier, Feb.1, 1894.

10. Grant # 396 in the New Brunswick Crown Lands Office, Fredericton, dated January 28, 1802

11. Ganong, William F. 1904. “John Mitchel’s diary and field book of his survey of Passamaquoddy in 1764.” New Brunswick Historical Society Collections 2.5 p. 170.

12. National Archives of Canada, Record Group 10 (Indian Affairs) Vol 2918, File 187,086-2.

13. Canoose Indian Reserve File, Crown Lands Office, Fredericton.

14. Order in Council PC 1944-7325.

15. “Specific Claims of New Brunswick”, Union of New Brunswick Indians, INAC E98. C6S68.

16. 14 February 1854; Journal of the Legislative Assembly 1854 (1) p.19. RS24 House of Assembly Sessional Records Petition #40, 1854PANB.

17. Provincial Archives of New Brunswick, RS108 Land Petitions: original Series; RS965 Indian Documentation Inventory, Fredericton, NB, microfilm, 1994.

18. Letter from Dr. Grove to Surveyor General, February 18,1867, RS637 Records of the Surveyor General, IDI

19. Letter to the NGO Committee of the United Nations. (Personal communication)